Before the Court are cross-motions
for summary judgment. Having considered the motions and the parties' arguments,
the Court grants respondent Scott Massey's (Massey) motion and dismisses
David Clarke's (Clarke) petition.

Factual Background

This action is a follow-up
to one filed in 1991 by the respondent, Scott Massey. ScottMassey v. Uninsured Employers' Fund and David Clarke,
WCC. No. 9106-6160. In the 1991 action, Massey sought a determination
that Clarke was either an independent contractor or was acting outside
the scope and course of his employment when injured on February 5, 1990.
On November 12, 1991, this Court issued Findings of Fact and Conclusions
of Law and Judgment, determining that Clarke was an employee of Massey.
The decision directed Massey to "reimburse the Uninsured Employers' Fund
for all amounts expended on the workers' compensation claim of David Clarke
subject only to the limitations of section 39-71-504, MCA."

In the prior proceeding, Clarke
requested an award of attorney fees against Massey. However, the request
was made for the first time in proposed findings filed after trial. Massey
objected to the request as outside the scope of issues specified by the
pretrial order and the Court sustained the objection. (Findings of Fact
and Conclusions of Law and Judgment at 3.) Neither party filed a request
for a new trial or an appeal, and on February 7, 1992, the Court file
in WCC No. 9106-6160 was closed.

Two years later, on March
9, 1994, the Court received Respondent's Motion for Attorney Fees. The
motion requested the Court to award Clarke $3,922.50 in attorney fees
incurred with respect to his defense in WCC No. 9106-6160. The Court reopened
the original file.

On June 8, 1994, the Court
entered an Order Denying Motion for Attorney Fees; Order Permitting the
Filing of a New Petition. In that Order, the Court concluded that the
previous denial of Clarke's request for attorney fees was the law of the
case. Since denial of the request was premised on procedural rather than
substantive grounds, the Court went on to note that the prior ruling did
not necessarily preclude the filing of a new and separate petition for
attorney fees. However, it declined to say whether a new petition was
viable.

[T]he motion for attorney
fees is denied without prejudice. Claimant may revise,
recaption and submit the motion in the form of a petition and the Court
will accept it for filing and give it a new docket number. In the event
the claimant files such a petition, Massey may raise any defenses it may
have, including any defenses which present an insuperable bar to the prosecution
of the petition.

Clarke filed his present Petition
on August 25, 1994, renewing his request for attorney fees. Massey initially
moved to dismiss on account of a failure to mediate the dispute. Subsequent
information furnished by Clarke showed that he had requested mediation
and that his request had been rejected. Massey then withdrew the motion.
Massey then filed a response. Among other things, he affirmatively alleged
that there is no statutory authority for an award of attorney fees. (Response
to Petition, ¶ B.1.)

Following the filing of the
response, Clarke moved for summary judgment, arguing that he is entitled
to attorney fees as a matter of law. (Petitioner's Motion for Summary
Judgment (November 15, 1994).) Massey responded with his own cross-motion
for summary judgment, renewing his affirmative defense. ( Respondent's
Cross Motion for Summary Judgment (November 28, 1994).) Both motions are
based on the pleadings. They have been briefed and are ready for decision.

Discussion

The Workers' Compensation
Act contains specific provisions governing the award of attorney fees.
Initially, section 39-71-515, MCA (1989), contains an attorney fee provision
applicable to cases in which an injured employee brings suit against an
uninsured employer. The section provides in full part:

Independent cause
of action. (1) An injured employee or the employee's beneficiaries
have an independent cause of action against an uninsured employer for
failure to be enrolled in a compensation plan as required by this chapter.

(2) In such an action, prima
facie liability of the uninsured employer exists if the claimant proves,
by a preponderance of the evidence, that:

(a) the employer was required
by law to be enrolled under compensation plan No. 1, 2, or 3 with respect
to the claimant; and

(b) the employer was not
so enrolled on the date of the injury or death.

(3) It is not a defense
to such an action that the employee had knowledge of or consented to
the employer's failure to carry insurance or that the employee was negligent
in permitting such failure to exist.

(4) The amount of recoverable
damages in such an action is the amount of compensation that the employee
would have received had the employer been properly enrolled under compensation
plan No. 1, 2, or 3.

(5) A plaintiff who prevails
in an action brought under this section is entitled to recover reasonable
costs and attorney fees incurred in the action, in addition to his damages.

On its face, the attorney fee
provision set out in subsection (5) applies only to actions brought pursuant
to the section. Those actions may be commenced only in district court.
Bohmer v. Uninsured Employers' Fund, 51 St.
Rep. 824 (September 2, 1994); § 39-71-616, MCA. Thus, the section provides
no authority for an award of attorney fees by this Court.

Section 39-71-611, MCA, permits
this Court to award reasonable attorney fees against insurers who have
unreasonably denied benefits due a claimant. It is this section which
Clarke invokes in his request for attorney fees.(1)
(Petition at ¶ 4.d. and [Petitioner's] Brief in Support of Motion for
Summary Judgment).) Section 39-71-611, MCA, provides:

Costs and attorneys'
fees payable on denial of claim or termination of benefits later found
compensable. (1) The insurer shall pay reasonable costs and
attorney fees as established by the workers' compensation court if:

(a) the insurer denies liability
for a claim for compensa-tion or terminates compensation benefits;

(b) the claim is later adjudged
compensable by the workers' compensation court; and

(c) in the case of attorneys'
fees, the workers' compensation court determines that the insurer's
actions in denying liability or terminating benefits were unreasonable.

(2) A finding of unreasonableness
against an insurer made under this section does not constitute a finding
that the insurer acted in bad faith or violated the unfair trade practices
provisions of Title 33, chapter 18.

Massey argues that section
39-71-611, MCA, applies only to an insurer. An "insurer" is expressly
defined under the Workers' Compensation Act as "an employer bound by compensation
plan No. 1, an insurance company transacting business under compensation
plan No. 2, or the state fund under compensation plan No. 3 . . . ." §
39-71-116(8), MCA. Under plan No. 1, an employer wishing to self-insure
must "elect to be bound by compensation plan No. 1" and must furnish "satisfactory
proof to the department of his solvency and financial ability to pay the
compensation benefits provided for in this chapter." § 39-71-2101, MCA
(1989). Clarke does not contend that Massey met the requirements to become
a plan No. 1 self-insurer, and indeed alleges that he was uninsured. (Petition
at ¶ 4.b.) Thus, Massey does not meet the statutory definition of an insurer.

Clarke contends that section
39-71-611, MCA, should nonetheless be extended to an uninsured employer.
As authority he cites the maxim of jurisprudence which states, "That which
ought to have been done is to be regarded as done, in favor of him to
whom and against him from whom performance is due." § 1-3-220, MCA.

A maxim of jurisprudence cannot
defeat a specific statutory scheme enacted by the legislature. Courts
must give effect to statutes as written. They are precluded from inserting
requirements or provisions omitted by the legislature. The Supreme Court
has repeatedly stated that "[i]n construing a statute, courts cannot insert
what has been omitted . . . ." Russette v. Chippewa Cree
Housing Authority, 265 Mont. 90, 93, 874 P.2d 1217 (1994)
(quoting from Lester v. J & S Investment Company,
171 Mont. 149, 153, 557 P.2d 299, 301 (1976). And, where a statute
is plain on its face, courts can do no more and no less than apply the
statute as it is written. State ex rel. Neuhausen v. Nachtsheim,
253 Mont. 296, 299, 833 P.2d 201 (1992).

The legislature has made specific
provision for an award of attorney fees against an insurer who has unreasonably
denied liability for benefits. It has made no similar provision for an
award of attorney fees against an uninsured employer. Rules of statutory
construction preclude the Court from rewriting the definition of an insurer
and from adding an uninsured employer to the provisions of section 39-71-611,
MCA.

Clarke's motion for summary
judgment is denied. Lacking any statutory basis for awarding
attorney fees against an uninsured employer, Massey's cross-motion for
summary judgment is granted.

JUDGMENT

The Petition filed in this
matter is dismissed with prejudice and this Order is
certified as final for purposes of appeal.

Dated in Helena, Montana,
this 27th day of January, 1995.

(SEAL)

/S/ Mike
McCarter
JUDGE

c: Mr. Mark E. Jones
Ms. Kristine L. Foot

1. A companion
section, § 39-71-612, MCA, permits the Court to award attorney fees in
a case where the amount of benefits due a claimant is at issue. Since
this case involves a denial of liability, the section would not apply
in any event and is not cited by Mr. Clarke.